Sovereignty is a word we will hear a lot over the next few months. Brexit supporters say we need to leave the EU because it’s a threat to Britain’s sovereignty. According to the Mayor of London (yes, he is still that) parliament lost its sovereignty in 1972 and the only way get it back is to leave the EU. At least, I think that’s what he said but even Carl Gardner (who knows a lot about all this) wasn’t entirely sure what he meant.
Fortunately, for those of us who would like to understand the idea of sovereignty in a bit more detail, there are plenty of people writing more clearly on the subject. There are two important points.
Firstly, on parliamentary sovereignty; parliament can make any law it likes. As Carl explains:
When we say Parliament can make any law whatever, we really mean it. It’s a radical idea, that many law students find hard to believe at first.
While in some countries it is possible to challenge legislation in constitutional courts, there are no such constraints on the UK’s parliament. As Mark Elliot says:
A law directing the killing of all blue-eyed babies would be valid. The fact that such laws remain unenacted is thanks to “political constitutionalism” as opposed to “legal constitutionalism”: it is political, not legal, factors — including, one hopes, legislators’ own sense of morality — that operate as the restraining force.
Let’s take a recent example. Donald Trump has said that he would ban all Muslims from entering the US. If he were elected, though, he might find that promise difficult to keep. It would certainly be challenged in the courts and would probably be declared unconstitutional. A British prime minister faces no such constraints, apart from those that parliament has chosen to impose on itself. And these can always be repealed.
This piece in the FT by Philip Stevens explains the position clearly:
[E]even as authority is delegated, the sovereignty of parliament remains unfettered. What Westminister devolves it can reclaim. International treaties and commitments bind Britain only in so far and for so long as a majority of parliamentarians so decide. Each and every one could be abrogated by a simple legislative act. Britain is free to leave the UN, quit Nato and renounce its human rights commitments whenever it so chooses.
The same is true of the EU. Membership of the union represents the most extensive and complex exercise in the delegation of authority to a supranational organisation. The European Court of Justice adds a dynamic legislative interpretation mostly absent elsewhere. The basic principle remains, however: the accession treaty can be revoked at the whim of parliament.
So all those horrid EU laws, including the dreaded European Communities Act 1972 that Boris Johnson was complaining about, can be repealed. EU law only has primacy over UK law in certain areas because Parliament says it has. And Parliament can change its mind about that whenever it likes.
Here’s Mark Elliot again:
If EU law is supreme, can Parliament be sovereign? The answer is ‘yes’. This follows because the default primacy enjoyed by EU law in the UK is itself attributable to an Act of Parliament—that is, the 1972 Act—and Parliament remains capable of amending, overriding or even repealing that Act.
The second point is that there is always a tension between national sovereignty and matters of geopolitics and global trade. George Magnus explained this in Prospect a couple of weeks ago:
There is a trade-off to be made, then. In light of this, you cannot have an abstract discussion about sovereignty without saying what you are going to surrender in terms of economic integration and benefit. Brexiteers are free to discuss “taking back control,” but they are then under an obligation to discuss the potential economic disadvantages of doing so.
Even outside the EU, as this week’s Bagehot column in The Economist points out, the UK would still be subject to 700 international treaties, a member of the UN, WTO, NATO, IMF and World Bank, and subscribe to a swathe of nuclear test ban, energy, water, maritime law and air traffic treaties. The idea that leaving the EU would lead to a golden era of UK sovereignty and self-determination, is, it is fair to say, far-fetched at least.
North Korea is an example of sovereignty taken to its extreme. The government there does whatever it wants to but the trade-off is that no other country in the world wants anything to do with it. Any government can exercise as much sovereignty as it likes but it has to decide how much its people are prepared to sacrifice as a result. Iran, for example, could have chosen to continue its nuclear programme but it would have therefore had to continue to endure the trade embargo.
Such de facto limits on sovereignty are inevitably a function of power. Burma became a pariah state after its violent suppression of popular protests. The US, EU and others imposed sanctions. China, on the other hand, can shoot protesters in the streets and still be awarded the Olympics. Having a growing economy and a fifth of the world’s population means that you don’t have to worry quite as much about what other people think.
The EU is an attempt to resolve some of this tension by creating institutions to govern a series of trade agreements. With the European Parliament it has even tried to subject them to some democratic accountability. In the interests of trading with each other, EU countries give up some of their day-to-day sovereignty and agree to be subject to EU law. Even so, any one of those countries can leave the EU at any time. This is a fact which seems to get lost in the noise about sovereignty. Even if the UK votes to stay in three months from now, that still wouldn’t stop it from leaving in the future.
The same is true of all the international treaties to which the UK has signed up. If the British voters decide that the risk of adhering to these treaties is worse than the consequences of withdrawing from them, then there is nothing to stop us from doing so. The Atlantic reported last week that Barak Obama had pointedly reminded David Cameron of his NATO obligation to spend at least 2 percent of GDP on defence, after which the defence budget was ring-fenced. Is that another constraint on our sovereignty? Only because we want to be members of NATO. We can always decide to leave.
The UK is a sovereign state and, within it, its parliament is sovereign. Like most other countries, it chooses to be bound by international treaties and trading agreements. None of these are irreversible. If we are prepared to deal with the consequences, we can repudiate any treaties we don’t like. None of that will change whether we vote to stay or go on 23 June.